Com. v. Miller, S. ( 2017 )

J-S70015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHAWN MILLER :
:
Appellant : No. 882 MDA 2017
Appeal from the Judgment of Sentence May 4, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000120-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 28, 2017
Appellant, Shawn Miller, appeals from the judgment of sentence
entered in the Luzerne County Court of Common Pleas, following revocation
of his probation. We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
On May 18, 2015, Appellant pled guilty to illegal dumping of
methamphetamine waste at docket number CP-40-CR-0000120-2015; and
on September 30, 2015, Appellant pled guilty to theft by unlawful taking at
docket number CP-40-CR-0000840-2015.1 The court sentenced Appellant
on December 9, 2015, to fifteen (15) to thirty (30) months’ imprisonment
plus two (2) years’ probation at docket number 120-2015, to run
____________________________________________
1 18 Pa.C.S.A. §§ 3313(a), 3921(a), respectively.
J-S70015-17
concurrently with a sentence of eight (8) to sixteen (16) months’
imprisonment plus twelve (12) months’ probation at docket number 840-
2015.
The court held a revocation of probation hearing on May 4, 2017. At
the hearing, Appellant admitted he had violated his probation at both
dockets by possessing drug paraphernalia. The court resentenced Appellant
to two (2) to four (4) years’ imprisonment at docket number 120-2015, and
one (1) year of probation at docket number 840-2015. On May 12, 2017,
Appellant filed a pro se motion for reconsideration and a pro se notice of
appeal; and Appellant’s counsel also filed a motion for reconsideration. The
court denied Appellant’s counseled motion for reconsideration on May 15,
2017, and counsel timely filed a notice of appeal on Appellant’s behalf that
same day. On May 26, 2017, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant timely complied. This Court dismissed Appellant’s pro se
notice of appeal as duplicative on June 22, 2017. Counsel filed a motion to
withdraw and an Anders brief on August 28, 2017.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
-2-
J-S70015-17
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
____________________________________________
2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
-3-
J-S70015-17
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw. The
petition states counsel performed a conscientious review of the record and
concluded the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the withdrawal petition, the brief, and a letter explaining
Appellant’s right to proceed pro se or with new privately-retained counsel to
raise any additional points Appellant deems worthy of this Court’s attention.
In his Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel refers to facts in the record that might arguably
support the issue raised on appeal and offers citations to relevant law. The
brief also provides counsel’s reasons for concluding that the appeal is
frivolous. Thus, counsel has substantially complied with the requirements of
Anders and Santiago.
-4-
J-S70015-17
Appellant has filed neither a pro se brief nor a counseled brief with
new privately-retained counsel; we will review the issue raised in the
Anders brief:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
SENTENCING APPELLANT.
(Anders Brief at 5).
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013)
(en banc) (explaining that, notwithstanding prior decisions which stated our
scope of review in revocation proceedings is limited to validity of
proceedings and legality of sentence, appellate review of revocation
sentence can also include discretionary sentencing challenges).
Appellant argues the court failed to consider as mitigating factors his
drug addiction and the fact that he turned himself in to the authorities.
Appellant complains the court abused its discretion when it resentenced
Appellant following revocation of probation. As presented, Appellant’s issue
challenges the discretionary aspects of his sentence.3 See Commonwealth
v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (explaining claim that sentence is
____________________________________________
3Appellant preserved this claim in his motion for reconsideration of sentence
and counsel included a statement pursuant to Pa.R.A.P. 2119(f) in his
Anders brief.
-5-
J-S70015-17
manifestly excessive challenges discretionary aspects of sentencing);
Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal
denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating allegation court ignored
mitigating factors challenges discretionary aspects of sentencing).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial
question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825(Pa.Super. 2007). A substantial question exists “only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000).
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. Bald allegations of excessiveness, however, do not raise a substantial
question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,
a substantial question exists “only where the appellant’s Rule 2119(f)
-6-
J-S70015-17
statement sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process….” Id. See, e.g., Cartrette, supra (indicating claim that
revocation court ignored appropriate sentencing factors raises substantial
question). An allegation that the sentencing court failed to consider a
specific mitigating factor, however, does not necessarily raise a substantial
question. Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001)
(holding claim that sentencing court ignored appellant’s rehabilitative needs
failed to raise substantial question).
In the context of probation revocation and resentencing, the
Sentencing Code provides, in pertinent part:
§ 9771. Modification or revocation of order of
probation
(a) General rule.—The court may at any time
terminate continued supervision or lessen or increase the
conditions upon which an order of probation has been
imposed.
(b) Revocation.—The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as
were available at the time of initial sentencing, due
consideration being given to the time spent serving the
order of probation.
(c) Limitation on sentence of total
confinement.—The court shall not impose a sentence of
total confinement upon revocation unless it finds that:
-7-
J-S70015-17
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is not
imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.
* * *
42 Pa.C.S.A. § 9771(a)-(c). “The reason for revocation of probation need
not necessarily be the commission of or conviction for subsequent criminal
conduct. Rather, this Court has repeatedly acknowledged the very broad
standard that sentencing courts must use in determining whether probation
has been violated.” Commonwealth v. Colon, 102 A.3d 1033, 1041
(Pa.Super. 2014), appeal denied, 631 Pa. 710, 109 A.3d 678 (2015).
“[T]he revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court’s decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super.
2006). See also Commonwealth v. Hoover, 909 A.2d 321, 322
(Pa.Super. 2006). Following the revocation of probation, the court may
impose a sentence of total confinement if any of the following conditions
exist: the defendant has been convicted of another crime; the conduct of the
defendant indicates it is likely he will commit another crime if he is not
imprisoned; or, such a sentence is essential to vindicate the authority of the
-8-
J-S70015-17
court. See 42 Pa.C.S.A. § 9771(c). The Sentencing Guidelines do not apply
to sentences imposed following a revocation of probation. Commonwealth
v. Ferguson, 893 A.2d 735, 739 (Pa.Super. 2006), appeal denied, 588 Pa.
788, 906 A.2d 1196 (2006). The record as a whole can be used to evaluate
the sentencing court’s consideration of the facts of the case and the
defendant’s character. Commonwealth v. Crump, 995 A.2d 1280, 1283
(Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). See
also Commonwealth v. Carrillo-Diaz, 64 A.3d 722 (Pa.Super. 2013)
(explaining where revocation court presided over defendant’s no contest plea
hearing and original sentencing, as well as his probation revocation hearing
and sentencing, court had sufficient information to evaluate circumstances of
offense and character of defendant when sentencing following revocation).
Instantly, Appellant’s complaint that the sentencing court did not
adequately consider specific mitigating factors (his history of drug abuse and
that he turned himself in to the authorities) and his bald claim of sentence
excessiveness arguably do not raise substantial questions meriting review.
See Mouzon, supra. Nevertheless, we observe the court initially sentenced
Appellant on December 9, 2015, to an aggregate sentence of fifteen to thirty
months’ incarceration plus two years’ probation for both docket numbers.
Appellant violated his probation by possessing drug paraphernalia, which he
admitted at the revocation hearing on May 4, 2017. When the court revoked
Appellant’s probation, defense counsel asked the court to consider a
-9-
J-S70015-17
sentence lower than a state sentence. The court rejected defense counsel’s
request, explaining parole and probation had not worked for Appellant,
considering his criminal record of eighteen prior revocations and twenty-one
guilty pleas. The court indicated it had given Appellant a chance to reform
that Appellant simply did not take. The court resentenced Appellant to two
(2) to four (4) years’ imprisonment at docket number 120-2015, and one (1)
year of probation at docket number 840-2015. The judge who presided over
Appellant’s probation revocation hearing was the same jurist who had
presided over Appellant’s initial bench trial and sentencing, so the court had
sufficient information to evaluate the circumstances of Appellant’s case as
well as his character. See Carrillo-Diaz, supra. The record confirms the
court imposed a sentence of total confinement consistent with Section
9771(c). See 42 Pa.C.S.A. § 9771(c). See also Commonwealth v.
Malovich, 903 A.2d 1247 (Pa.Super. 2006) (holding record evidenced that
court imposed sentence of total confinement following revocation of
appellant’s probation to vindicate court’s authority, where appellant had not
complied with previous judicial efforts such as drug court, had not “been
putting anything into” court-imposed rehabilitation efforts, and it was
important for appellant to appreciate seriousness of his actions; record as
whole reflected court’s reasons for sentencing as well as court’s
consideration of circumstances of appellant’s case and character);
Commonwealth v. Cappellini, 690 A.2d 1220 (Pa.Super. 1997) (holding
- 10 -
J-S70015-17
appellant’s continued drug use as well as his resistance to treatment and
supervision, was sufficient for court to determine appellant would likely
commit another crime if not incarcerated); Commonwealth v. Aldinger,
436 A.2d 1196 (1981) (explaining sentence of total confinement was proper
where record reflected appellant had violated probation by using drugs;
court considered circumstances giving rise to revocation proceeding and
appellant’s character).
Moreover, in its opinion, the trial court correctly analyzed and
discussed Appellant’s issue as follows:
At the resentencing hearing, a colloquy was conducted and
the Pre–Sentence Investigation (PSI) was discussed. The
Commonwealth argued that [Appellant] should be
sentenced to a state sentence. The Commonwealth further
asserted that [Appellant] has an extensive record and
anything less than state sentence would be less than he
already had received in the first instance.
[Appellant’s counsel] contends that [Appellant] had turned
himself in and is taking full responsibility for both of the
revocations by admitting to them. [Appellant’s counsel]
further asserted that [Appellant] has taken responsibility
for his actions and this change in his attitude and behavior
is important and should be considered.
The record further establishes the following sentencing
factors that were reviewed and considered:
THE COURT: Your Pre-Sentence Investigation is
just filled with treatment option after treatment
option, IPP, parole, inpatient, outpatient, DRC and
the majority of these do involve drug use. There’s
no doubt, you’re fortunate you’re still alive because
the majority of these involved crimes that involve
drugs. ... My fear is that the Pre-Sentence
investigation from [two years] ago...has very serious
- 11 -
J-S70015-17
charges. Driving while you’re drunk, heroin needles
in the car, high speed chases with the police, risking
catastrophe by covering yourself in gasoline, in an
apartment when the police come in and find you.
It’s frightening when we read so many residences
that you broke into...people’s homes you broke into.
You’ve had so many treatments throughout the
course of this. You’ve had revocations of parole.
You violated [your] parole when you got arrested
and tested positive for valium, for methadone. You
were arrested for driving with false ID, and having
four syringes, a spoon and heroin. The list goes on
and on and for the majority of these, you’re on
parole or probation while it’s still happening. You
have to get serious about it, sir, because you’re
living on borrowed time because this is your whole
life...page after page.
Here, the Sentencing Court has clearly and expressly
complied with the requirements of 42 Pa.C.S. § 9721(b) by
imposing a sentence that is consistent with the protection
of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant. The record
demonstrates a complete review of [Appellant’s] past, the
crimes committed and the impact on society.
Accordingly, no meritorious issues for appeal exist with
regard to [Appellant’s] alleged [errors] complained of on
appeal.
(Trial Court Opinion, filed June 23, 2017, at 5-6) (internal citations omitted).
Following our independent review of the record, we conclude the appeal is
wholly frivolous. See Palm, supra. Accordingly, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
- 12 -
J-S70015-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
- 13 -